Exhibit 10.11
AMENDED AND RESTATED CASH COLLATERAL AGREEMENT
AMENDED AND RESTATED CASH COLLATERAL AGREEMENT, dated as of November
21, 2005 (this "Agreement"), between Space Systems/Loral, Inc. (the "Pledgor"),
a corporation existing under the laws of the State of Delaware and successor in
interest to the DIP Pledgor referenced below, and JPMorgan Chase Bank, N.A.
(formerly known as JPMorgan Chase Bank) (the "Bank").
W I T N E S S E T H
WHEREAS, pursuant to the Letter of Credit Reimbursement Agreement,
dated as of April 2, 2004 (as heretofore amended, supplemented or otherwise
modified, the "Existing L/C Agreement"), between Space Systems/Loral, Inc., as a
debtor and a debtor-in-possession (the "DIP Pledgor"), and the Bank, the Bank
has issued Letters of Credit at the request of, and for the account of, the DIP
Pledgor;
WHEREAS, pursuant to the Cash Collateral Agreement, dated as of
April 2, 2004 (as heretofore amended, supplemented or otherwise modified, the
"Existing Cash Collateral Agreement"), between the DIP Pledgor and the Bank, the
DIP Pledgor granted to the Bank a first priority perfected security interest in
the Collateral and a Superpriority Claim (each as defined in the Existing L/C
Agreement) pursuant to Section 364(c) of the Bankruptcy Code to secure repayment
of the obligations under the Existing L/C Agreement; and
WHEREAS, the Bank and the DIP Pledgor have agreed to amend and
restate the Existing L/C Agreement in its entirety and, concurrently therewith,
amend and restate the Existing Cash Collateral Agreement in its entirety such
that the Liens granted to the Bank will not be cancelled or discharged as a
result of the occurrence of the Plan Effective Date and such Liens will continue
to secure the obligations of the Borrower under the Amended and Restated Letter
of Credit Reimbursement Agreement, dated as of even date herewith (as amended,
supplemented or otherwise modified from time to time, the "Reimbursement
Agreement");
NOW, THEREFORE, in consideration of the above premises, the Pledgor
and the Bank hereby agree to amend and restate the Existing Cash Collateral
Agreement in its entirety as follows:
Section 1. DEFINITIONS. Capitalized terms used herein but not
otherwise defined shall have the meaning ascribed thereto in the Reimbursement
Agreement.
Section 2. PLEDGE AND ASSIGNMENT. As security for the payment of all
Obligations of the Pledgor in respect of the Letters of Credit, under the
Reimbursement Agreement and under this Agreement, the Pledgor
hereby irrevocably assigns and pledges to the Bank, and hereby grants to the
Bank, a first priority security interest in (i) the Pledgor's account, number
323-351832 (for credit to Space Systems Loral Inc.), with the Bank at its
offices at 000 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, XX 00000 (hereinafter called
the "Cash Collateral Account") which Cash Collateral Account shall be under the
sole dominion and control of the Bank, (ii) all cash from time to time deposited
into the Cash Collateral Account, (iii) all Investments (as defined in Section 5
hereof) and certificates and instruments, if any, from time to time representing
or evidencing the Cash Collateral Account and (iv) to the extent not covered by
clauses (i) through (iii) above, all proceeds and products of any and all of the
foregoing (collectively, the "Collateral"). Cash, Investments, security
entitlements or other investments held or carried in the Cash Collateral Account
shall not be available for use by the Pledgor or any of its subsidiaries or
Affiliates for any purpose.
Section 3. REMEDIES UPON DEFAULT.
(a) The Pledgor hereby agrees that if any amount payable by it in
respect of the Obligations is not paid when due (whether upon demand, at stated
maturity, by acceleration or otherwise), the Bank may, by giving five (5)
Business Days' notice to the Pledgor: (i) charge, set-off and otherwise apply
all or any part of the Cash Collateral against the Obligations then due (or
which become due) or any part thereof or (ii) exercise in respect of the
Collateral, in addition to other rights and remedies provided for herein or
otherwise available to it, all the rights and remedies of a secured party under
the Uniform Commercial Code in effect in the State of New York at that time.
Without limiting the generality of clause (ii) above, the Bank may sell, redeem,
collect or otherwise realize on the Collateral or any portion thereof in one or
more parcels at a public or private sale, at its offices or elsewhere, for cash,
on credit or for future delivery and on such other terms as the Bank may deem
commercially reasonable and without notice or demand except to the extent
required by law (and if any such notice may be required by law the Pledgor
agrees that at least 5 Business Days' notice shall constitute reasonable
notification). The Bank shall not be obligated to make any such sale of
Collateral regardless of whether notice of such sale has been given and may
adjourn any such sale from time to time by announcement at the time and place
fixed therefor and such sale may, without further notice, be made at the time
and place to which it was so adjourned.
(b) Any cash held by the Bank as Collateral and all cash proceeds
received by the Bank in respect of any sale of, collection from, or other
realization upon all or any part of the Collateral may, in the discretion of the
Bank, then or at any time thereafter be applied in whole or in part by the Bank
against all or any part of the Obligations then due (or which become due) in
such order as the Bank may elect. Any surplus of such cash or cash proceeds held
by the Bank and remaining after payment in full of all of the Obligations after
expiry or termination of all Letters of Credit shall be paid over to the Pledgor
or to whomsoever may be lawfully entitled to receive such surplus.
Section 4. MAINTAINING THE CASH COLLATERAL ACCOUNT.
(a) The Pledgor hereby further agrees that so long as any Letters
of Credit or Obligations are outstanding, it will deposit and maintain at all
times an amount in the Cash Collateral Account equal to (x) in the case of
Letters of Credit or Obligations denominated in Dollars at least one hundred
five percent (105%) of the LC Exposure in respect of such Letters of
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Credit, and (y) in the case of Letters of Credit denominated in an Alternative
Currency at least one hundred ten percent (110%) of the LC Exposure in respect
of such Letters of Credit.
(b) If at any time the Collateral maintained in the Cash Collateral
Account in respect of any outstanding Alternative Currency Letters of Credit is
less than 110% of the then Dollar Equivalent of the LC Exposure relating to such
Alternative Currency Letters of Credit, then the Pledgor shall, within three (3)
Business Days after receipt of notice from the Bank delivered in accordance with
Section 3.02 of the Reimbursement Agreement, deposit an amount in Dollars in the
Cash Collateral Account equal to the amount required such that the Collateral in
the Cash Collateral Account is not less than 110% of the Dollar Equivalent of
the LC Exposure relating to such Alternative Currency Letters of Credit. In the
event that the Collateral maintained in the Cash Collateral Account in respect
of any outstanding Alternative Currency Letters of Credit is more than 110% of
the then Dollar Equivalent of the LC Exposure relating to such Alternative
Currency Letter of Credit, or in the event that the Collateral maintained in the
Cash Collateral Account in respect of any other Letter of Credit is more than
105% of the LC Exposure relating to such other Letter of Credit, so long as no
Default or Event of Default has occurred and is continuing, the Bank will, no
more often than one time per each fiscal quarter, upon request from the
Borrower, transfer such excess, as determined by the Bank in Good Faith, to an
account of the Borrower.
Section 5. INVESTING AMOUNTS IN THE ACCOUNTS.
If requested by the Pledgor, the Bank will, from time to time, (a)
invest amounts on deposit in the Cash Collateral Account in such deposits,
commercial paper and securities (the "Investments") as the Pledgor may select
and the Bank may approve in its reasonable discretion and (b) invest interest or
dividends paid on the Investments and reinvest other proceeds of such
Investments which may mature or be sold in new deposits, commercial paper or
securities as the Pledgor may select and the Bank may approve in its discretion.
Interest and proceeds which are not invested or reinvested shall be deposited
and held in the Cash Collateral Account; provided that the Pledgor may at any
time or from time to time request release of such interest and proceeds in
accordance with Section 4 hereof. The Bank will only approve Investments in
which it can obtain a first-priority, perfected security interest, which may
require the Pledgor to execute, and the Pledgor hereby agrees to execute
promptly, necessary documents.
Section 6. REPRESENTATIONS AND WARRANTIES.
The Pledgor hereby represents to the Bank that: (a) the execution,
delivery and performance by it of this Agreement have been duly authorized by
all necessary corporate action, and do not and will not violate any law or
regulation applicable to it or will not violate any law or regulation applicable
to it or contravene any loan, credit or other agreement to which it is a party
or by which it or its properties are bound, (b) it is the legal and beneficial
owner of the Collateral free and clear of any lien, security interest or other
charge or encumbrance except for the security interest created by this
Agreement, (c) this Agreement constitutes a legal, valid and binding obligation
of the Pledgor enforceable in accordance with its terms, except as the
enforceability thereof may be limited by applicable bankruptcy, insolvency,
reorganization or other similar laws affecting creditors' rights generally and
by general equitable principles (regardless of whether the issue of
enforceability is considered in a proceeding in equity or at
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law), and creates in favor of the Bank a perfected, first priority security
interest in the Collateral, enforceable in accordance with its terms, (d) no
consent of any other person (including, without limitation, stockholders or
creditors of the Pledgor or any of its subsidiaries or of any parent company of
the Pledgor), and no consent, license, permit, approval or authorization of,
exemption by, or registration, filing or declaration with, any governmental
authority is required in connection with the execution, delivery, performance,
validity or enforceability of this Agreement by or against the Pledgor, other
than consents that have already been obtained and which remain in full force and
effect, (e) the execution, delivery and performance of this Agreement will not
result in the creation or imposition of any lien (other than the Liens in favor
of the Bank under this Agreement) on any of its properties or assets pursuant to
the provisions of any contractual obligation, and (f) there is no litigation,
suit, action, investigation, inquiry or other proceeding presently pending which
could reasonably be expected to affect the value of the Collateral or, to the
knowledge of the Pledgor, threatened against the Pledgor or any of its
subsidiaries or any of their properties or assets, by or before any arbitrator
or any governmental authority and no preliminary or permanent injunction or
order by a state or Federal court has been entered in connection with this
Agreement.
Section 7. COVENANTS.
The Pledgor covenants and agrees with the Bank that:
(a) The Pledgor will not (1) sell, assign, transfer, exchange, or
otherwise dispose of, or grant any option with respect to, the Collateral, or
(2) create, incur or permit to exist any Lien or option in favor of, or any
claim of any person with respect to, any of the Collateral, or any interest
therein, except for the Liens created by this Agreement.
(b) The Pledgor will maintain the Liens created by this Agreement as
a first priority, perfected security interest and defend the right, title and
interest of the Bank in and to the Collateral against the claims and demands of
all persons whomsoever. At any time and from time to time, upon the written
request of the Bank, and at the sole expense of the Pledgor, the Pledgor will
promptly and duly execute and deliver such further instruments and documents and
take such further actions as the Bank reasonably may request for the purposes of
obtaining or preserving the full benefits of this Agreement and of the rights
and powers herein granted.
Section 8. WAIVER.
The Pledgor hereby waives presentation of any instrument or
document evidencing any indebtedness or liability to the Bank, demand of
payment, protest and notice of non-payment or protest.
Section 9. EXPENSES.
The Pledgor further agrees that it will pay the Bank upon written
demand any and all reasonable expenses (including reasonable fees and expenses
of its counsel) which the Bank may incur in connection with the exercise or
enforcement of any of the rights of the Bank hereunder.
Section 10. CONTINUING SECURITY INTEREST.
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This Agreement shall create a continuing Lien on the Collateral
and shall (a) remain in full force and effect until the payment in full of the
Obligations and the expiration or cancellation of all outstanding Letters of
Credit, (b) be binding upon the Pledgor and its successors and assigns (provided
that any assignment by the Pledgor may be made only with the prior written
consent of the Bank), and (c) inure to the benefit of the Bank and its
successors, transferees and assigns. Upon the payment in full of the Obligations
and the expiration or cancellation of all outstanding Letters of Credit, the
Pledgor shall be entitled to the return, upon its request and at its expense, of
such of the Collateral as shall not have been applied pursuant to the terms of
this Agreement. It is the intention of the parties hereto that the Liens created
hereby in favor of the Bank shall continue from and after the Plan Effective
Date to constitute continuing, perfected first priority security interests in
the Collateral, as security for the Obligations. Accordingly, effective on the
Plan Effective Date, the Pledgor confirms that it has granted, and does hereby
grant, to the Bank, a security interest in all right, title and interest of the
Pledgor in and to the Collateral as security for the Obligations.
Section 11. FURTHER ASSURANCES.
At the cost and expense of the Borrower, the Borrower shall
execute and file all such further documents and instruments, and perform such
other acts, as the Bank may request to maintain the Liens granted to the Bank in
connection with this Agreement and the Reimbursement Agreement and to maintain
the priority of such Liens granted pursuant to this Agreement and the
Reimbursement Agreement. Pursuant to the New York UCC and any other applicable
law, the Borrower authorizes the Bank to file or record financing statements and
other filing or recording documents or instruments with respect to the
Collateral without the signature of the Borrower in such form and in such
offices the Bank reasonably determines appropriate to perfect the security
interests of the Bank under this Agreement and the Reimbursement Agreement. A
photographic or other reproduction of this Agreement shall be sufficient as a
financing statement or other filing or recording document or instrument for
filing or recording in any jurisdiction.
Section 12. AMENDMENTS, ETC.
No amendment or waiver of any provision of this Agreement nor
consent to departure by the Pledgor herefrom shall in any event by effective
unless the same shall be in writing and signed by the Bank, and then such waiver
or consent shall be effective only in the specific instance and for the specific
purpose for which given.
Section 13. NOTICES.
All notices, requests and demands to or upon the Bank or the
Pledgor to be effective shall be in writing (including telecopier) or by
telephone (but if by telephone, confirmed immediately by telecopier) and shall
be deemed to have been duly given or made (1) when delivered by hand or (2) if
given by mail, when deposited in the mails by certified mail, return receipt
requested, or (3) if by fax or similar electronic transfer, when sent and
receipt has been confirmed, addressed to the Bank or the Pledgor at its address
or transmission number for notices set forth below its signature hereto. The
Bank and the Pledgor may change their
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addresses and transmission numbers for notices by notice in the manner provided
in this paragraph.
Section 14. GOVERNING LAW; SUBMISSION TO JURISDICTION; JURY TRIAL.
(a) This Agreement and the rights and obligations of the parties hereunder shall
be construed in accordance with and be governed by the law of the State of New
York. Any legal action or proceeding between the Pledgor and any other party to
this Agreement arising out of or with respect to this Agreement may be brought
in the state courts of the State of New York, located in the County of New York,
or in the courts of the United States for the Southern District of New York, and
the Pledgor submits to the non-exclusive jurisdiction of such courts for the
purpose of any such suit, action or proceeding or judgment. Each party to this
Agreement irrevocably consents to service of process in the manner provided for
notices in Section 13, such service to become effective 30 days after such
mailing. Nothing in this Agreement will affect the right of any party to this
Agreement to serve process in any other manner permitted by law. Nothing herein
shall affect the right of the Bank to bring any legal action or proceeding
against the Pledgor in any court having jurisdiction with respect thereto.
(b) Each of the Bank and the Pledgor hereby irrevocably waives, to
the fullest extent it may legally and effectively do so, any objection which it
may now or hereafter have to the laying of venue of any of the aforesaid actions
or proceedings arising out of or in connection with this Agreement brought in
the courts referred to in Section 14(a). Each of the Plegdor and the Bank hereby
further irrevocably waive and agree not to plead or claim in any such court that
any such action or proceeding brought in any such court has been brought in an
inconvenient forum.
(c) Each of the Pledgor and the Bank waives, to the fullest extent
it may legally and effectively do so, any right it may have to jury trial in any
legal proceeding directly or indirectly arising out of or relating to each of
the Pledgor's and the Bank's rights and obligations under this Agreement or
transactions contemplated hereby (whether based on contract, tort or any other
theory).
Section 15. COUNTERPARTS.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy shall be effective as delivery of a manually
executed counterpart of this Agreement.
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IN WITNESS WHEREOF, the undersigned has caused its duly authorized
officer to execute and deliver this Agreement as of the date first above
written.
SPACE SYSTEMS/LORAL, INC.
By: /s/ Xxx Xxxx
-------------------------------------
Name:
Title:
Address:
Attention:
Fax number:
Telephone:
Agreed and Accepted:
JPMORGAN CHASE BANK, N.A.
By: /s/ Xxxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
JPMorgan Chase Bank, N.A.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention:
Fax number:
Telephone:
